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Issue for consideration: An order of detention dated 24.03.2023was passed by the Commissioner of Police against appellant’s husband.Whether the alleged acts of commission for which the Detenu has been keptunder detention are prejudicial to ‘public order’ and whether all relevantcircumstances were considered or whether extraneous factors weighed inthe mind of the detaining authority leading to the conclusion that the Detenuis a habitual off ender and for prevention of further crimes by him, he oughtto be detained.Telangana Prevention of Dangerous Activities of Bootleggers,Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders, LandGrabbers, Spurious Seed Off enders, Insecticide Off enders, FertiliserOff enders, Food Adulteration Off enders, Fake Document Off enders,Scheduled Commodities Offenders, Forest Offenders, GamingOff enders, Sexual Off enders, Explosive Substances Off enders, ArmsOff enders, Cyber Crime Off enders and White Collar or FinancialOffenders Act 1986 – During the years 2022 and 2023, in quicksuccession, appellant’s husband had committed 9 (nine) more off encesand 5 (fi ve) FIRs were registered under various sections 186, 189, 353,504, 420, 384, 354, 420, 323, 392, 195A of IPC – An order of detentiondated 24.03.2023 was passed – Propriety:Held: The order of detention impugned failed to differentiate betweenoffences which create a “law and order” situation and which prejudiciallyaffect or tend to prejudicially affect “public order” – Even if the offences referred to in the Detention Order, alleged to have been committed by theDetenu have led to the satisfaction being formed, still the same are separateand stray acts aff ecting private individuals and the repetition of similar suchacts would not tend to aff ect the even fl ow of public life – The off ence inrespect of the minor girl did exercise consideration of the Court for sometime but it was noted that the Detenu was not arrested because of an orderpassed by the High Court on an application u/s. 438 of the Cr.PC. – Evenotherwise, the gravity of the off ences alleged in Arun Ghosh case washigher in degree, yet, the same were not considered as aff ecting ‘publicorder’ – The only other off ence that could attract the enumerated categoryof “acting in any manner prejudicial to the maintenance of public order”and an order of preventive detention, if at all, is the stray incident where theDetenu has been charged u/s. 353, IPC and where the police has not evencontemplated an arrest u/s. 41 of the Cr.PC – On an overall considerationof the circumstances, the existing legal framework for maintaining law andorder is suffi cient to address like off ences under consideration, which theCommissioner anticipates could be repeated by the Detenu if not detained– The order of detention is, thus, indefensible. [Paras 29, 39 and 40]Telangana Prevention of Dangerous Activities of Bootleggers,Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders, LandGrabbers, Spurious Seed Off enders, Insecticide Off enders, FertiliserOff enders, Food Adulteration Off enders, Fake Document Off enders,Scheduled Commodities Offenders, Forest Offenders, GamingOff enders, Sexual Off enders, Explosive Substances Off enders, ArmsOff enders, Cyber Crime Off enders and White Collar or FinancialOff enders Act 1986 – Application of mind in the order of detentiondated 24.03.2023 – Proper or not:Held: The Detenu was earlier preventively detained under the Actvide order of detention dated 04.03.2021, since quashed by the High Courtby its order dated 16.08.2021 – The Commissioner stated that the presentorder of detention is based only on 5 (fi ve) out of these 9 (nine) crimes(years 2022-2023), which are alleged to show that the Detenu’s activitiesare “prejudicial to the maintenance of public order, apart from disturbingpeace and tranquillity in the area” – The Commissioner sought to projectthat he ordered detention based on the said 5 (fi ve) FIRs, indication ofthe past off ences allegedly committed by the Detenu – However, with the quashing of the order of detention dated 04.03.2021 by the High Court andsuch direction having attained fi nality, it defi es logic why the Commissionerembarked on an elaborate narration of past off ences, which are not relevantto the grounds of the present order of detention – Since the aforesaid orderof the High Court went unchallenged and is, thus, binding upon the parties,it was not open to the Commissioner to refer to the very same antecedentoff ences again in the Detention Order under challenge – There was no directnexus or link with the immediate need to order detention and there wereextraneous considerations in the Detention Order. [Paras 43, 46 and 48]Preventive detention – Ordinary criminal law and extraordinarymeasure of law of preventive detention:Held: In the instant case, it is neither the case of the respondents thatthe Detenu had not complied with the terms of the notice issued u/s. 41-Aof the Cr. PC, nor has it been alleged that the conditions of bail had beenviolated by the Detenu – It is pertinent to note that in the three criminalproceedings where the Detenu had been released on bail, no applications forcancellation of bail had been moved by the State – In the light of the same,the provisions of the Act, which is an extraordinary statute, should not havebeen resorted to when ordinary criminal law provided suffi cient means toaddress the apprehensions leading to the impugned Detention Order – Theremay have existed suffi cient grounds to appeal against the bail orders, butthe circumstances did not warrant the circumvention of ordinary criminalprocedure to resort to an extraordinary measure of the law of preventivedetention. [Para 51]Preventive detention – Guidance for detaining authorities – Orderto be in plain and simple language:Held: There is no requirement in law of orders of detention beingexpressed in language that would normally be considered elegant or artistic– An order of detention, which is capable of comprehension, has to preciselyset forth the grounds of detention without any vagueness – The substance ofthe order and how it is understood by the detenu determines its nature – Anorder in plain and simple language providing clarity of how the subjectivesatisfaction was formed is what a detenu would look for, since the detenuhas a right to represent against the order of detention and claim that suchorder should not have been made at all. [Para 49] Telangana Prevention of Dangerous Activities of Bootleggers,Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders, LandGrabbers, Spurious Seed Off enders, Insecticide Off enders, FertiliserOff enders, Food Adulteration Off enders, Fake Document Off enders,Scheduled Commodities Offenders, Forest Offenders, GamingOff enders, Sexual Off enders, Explosive Substances Off enders, ArmsOff enders, Cyber Crime Off enders and White Collar or FinancialOff enders Act 1986 – Role of the Advisory Board and the Governmentin the period of detention:Held: It is one thing to say that the Advisory Board has expressed anopinion that there is suffi cient cause for the detention and, therefore, thedetention has been continued; yet, it is quite another thing to say that thedetention should continue for the maximum permissible period – In thelight of sub-section (2) of section 11 read with sub-section (1) of section 12of the Act, the period for which the detention should continue is left to bespecifi ed by the Government with the stipulation in section 13 thereof thatthe maximum period shall be 12 (twelve) months from the date of detention– This appears on a plain reading of the relevant statutory provisions – Theduration for which a detenu is to be kept in detention is for the detainingauthority to decide and not the Advisory Board – The period of detention andthe terminal point has, therefore, to be decided by the Government. [Para 58]Telangana Prevention of Dangerous Activities of Bootleggers,Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders, LandGrabbers, Spurious Seed Off enders, Insecticide Off enders, FertiliserOff enders, Food Adulteration Off enders, Fake Document Off enders,Scheduled Commodities Off enders, Forest Off enders, Gaming Off enders,Sexual Off enders, Explosive Substances Off enders, Arms Off enders,Cyber Crime Off enders and White Collar or Financial Off enders Act1986 – The term “maximum period” in s.13 and continuing detention:Held: The very term “maximum period” in section 13 vests theGovernment with discretion, allowing it to be exercised while consideringwhether the detention is to be continued for the maximum period of 12(twelve) months or any lesser period – The period of detention ought tonecessarily vary depending upon the facts and circumstances of each caseand cannot be uniform in all cases – The objective sought to be fulfilled in each case, whether is sub-served by continuing detention for the maximumperiod, ought to bear some refl ection in the order of detention; or else, theGovernment could be accused of unreasonableness and unfairness. [Paras63 and 70]Preventive detention – Judicial reviewability – The Courts totest the legality of orders of preventive detention, when called upon toexamine the same :Held: In the circumstances of a given case, a Constitutional Courtwhen called upon to test the legality of orders of preventive detentionwould be entitled to examine whether: (i) the order is based on the requisitesatisfaction, albeit subjective, of the detaining authority, for, the absence ofsuch satisfaction as to the existence of a matter of fact or law, upon whichvalidity of the exercise of the power is predicated, would be the sine quanon for the exercise of the power not being satisfi ed; (ii) in reaching suchrequisite satisfaction, the detaining authority has applied its mind to allrelevant circumstances and the same is not based on material extraneousto the scope and purpose of the statute; (iii) power has been exercisedfor achieving the purpose for which it has been conferred, or exercisedfor an improper purpose, not authorised by the statute, and is thereforeultra vires; (iv) the detaining authority has acted independently or underthe dictation of another body; (v) the detaining authority, by reason ofself-created rules of policy or in any other manner not authorized by thegoverning statute, has disabled itself from applying its mind to the facts ofeach individual case; (vi) the satisfaction of the detaining authority restson materials which are of rationally probative value, and the detainingauthority has given due regard to the matters as per the statutory mandate;(vii) the satisfaction has been arrived at bearing in mind existence of alive and proximate link between the past conduct of a person and theimperative need to detain him or is based on material which is stale; (viii)the ground(s) for reaching the requisite satisfaction is/are such which anindividual, with some degree of rationality and prudence, would consideras connected with the fact and relevant to the subject-matter of the inquiryin respect whereof the satisfaction is to be reached; (ix) the grounds onwhich the order of preventive detention rests are not vague but are precise,pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make asuitable representation; and (x) the timelines, as provided under the law,have been strictly adhered to. [Para 25]Constitution of India – Preventive detention – Reckless invocationof:Held: It requires no serious debate that preventive detention, conceivedas an extraordinary measure by the framers of the Constitution, has beenrendered ordinary with its reckless invocation over the years as if it wereavailable for use even in the ordinary course of proceedings – To unchainthe shackles of preventive detention, it is important that the safeguardsenshrined in the Constitution, particularly under the ‘golden triangle’ formedby Articles 14, 19 and 21, are diligently enforced. [Para 57] |
